| Tex. | Jul 1, 1871
This was an action commenced in the district court in the year 1860, by Thomas Brown, to set aside a deed exe
“ Articles of agreement made this the ninth day of March, eighteen hundred and sixty, between Thomas Brown, of the county and State aforesaid, of the first part, and William and Albert Tyler, of the county and State aforesaid, parties of the second part, witness: I, Thomas Brown, have this day covenanted and agreed with the party of the second part to sell, convey and relinquish my entire stock of cattle, and all other property owned by me, unto the party of the second part, hereby binding myself to warrant and defend the title of the same unto the party of the second part, against myself, my heirs, or any person or persons claiming or to claim the same. In confirmation of the above obligation I have here affixed my name in the presence of witnesses, the day above written.”
This is signed, witnessed and acknowledged. On the same day the foregoing contract was executed, the Tylers made a written obligation to Brown to take care of and provide for him during his natural life; and this contract seems to have formed a consideration for Brown’s deed.
Hiram Daugherty, one of the witnesses, testifies as follows: “ Defendants were sound in mind and body; had no visible means of support; they lived with Brown, their step-father; they were in his employ; had no home of their own; were sharp, shrewd young men, and could, if disposed, have taken advantage of Brown, whose mind had become so stultified as to render him absolutely incapable of making a rational contract. The pretended deeds referred to were, under the circumstances, not just, not fair, not equitable, but unconscionable, iniquitous and fraudulent. No honest man would have entered into a contract with Brown under the circumstances. Brown was a confirmed drunkard.”
Thomas Alford, Ed. Marlow, William Neese and Dan Killen,
The verdict of the jury was clearly against the weight of evidence ; nor was there anything in the evidence to call for the charge of the court touching vindictive or punitory damages. The verdict of the jury not only gave the defendants all the property which Brown had, but gave $1425 punitory damages against his administrator and his securities on the injunction bond. The-court dissolved the injunction and rendered judgment on this verdict, and refused a motion for new trial. There was no evidence in the case to establish malice in suing out the injunction; and if damage at all, it should have been measured by simple compensar tion for loss sustained. (See Smith v. Sherwood, 2 Texas, 460; Jordan v. David, 20 Texas, 718; Culbertson v. Cabeen and Jarman, 29 Tex., 247" court="Tex." date_filed="1867-01-15" href="https://app.midpage.ai/document/culbertson-v-cabeen-4890369?utm_source=webapp" opinion_id="4890369">29 Texas, 247; Reed v. Samuels et al., 22 Tex., 114" court="Tex." date_filed="1858-07-01" href="https://app.midpage.ai/document/reed-v-samuels-4889308?utm_source=webapp" opinion_id="4889308">22 Texas, 114; Neill v. Newton, 24 Tex., 202" court="Tex." date_filed="1859-07-01" href="https://app.midpage.ai/document/neill-v-newton-4889582?utm_source=webapp" opinion_id="4889582">24 Texas, 202; Hammonds v. Belcher and others, 10 Tex., 271" court="Tex." date_filed="1853-07-01" href="https://app.midpage.ai/document/hammonds-v-belcher-4887803?utm_source=webapp" opinion_id="4887803">10 Texas, 271.)
These authorities are conclusive to the point, that without malice, and the total absence of probable cause, the defendants could recover no more than their actual datnages, not to include attorneys’ fees and costs in defending the original suit. It is unnecessary to inquire whether the securities are liable or not.
The judgment of the district court is reversed and the cause remanded.
Reversed and remanded.